Why wait? Six ways that Congress could fix copyright, now

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Putting copyright's pieces back together will take serious time and effort.

The battle over implementation of the Anti-Counterfeit Trade Agreement in Europe is heating up, while the war of words over the Stop Online Privacy Act is still in play. Rightsholders have called critics of these measures "demagogues" and "dirty tricksters," but the critics show no sign of retreating from their opposition.

The fight against copyright maximalism has largely been negative. To offer something more positive, Public Knowledge (PK for short) has released an Internet Blueprint—six bills that the group says could "help make the internet a better place for everyone" and that "Congress could pass today."

We're not expecting Congress to pass them today (or tomorrow), but they're at least an intriguing start point for debate. Here's a quick version each.

Shorten copyright terms

The current copyright protection time window is quite large: life of the creator plus a whopping 70 years (or 95 years total for corporate authorship). It's hard to believe that when the Republic was young, copyright lasted 14 years, renewable by another 14.

"Continually expanding the term of copyright comes at a cost," the new Blueprint contends. "By giving an author a monopoly on an expression, it prevents other people from building on that expression to create new works."

The Public Knowledge reform proposal isn't particularly radical, though—it would reduce most copyright terms to life of the author plus 50 years, or "a flat 50 years if the author was an employee."

Stop abuses of the DMCA

The Digital Millennium Copyright Act allows copyright holders and their representatives to file takedown notices against sites that they claim are hosting infringing content. The original content poster can file a counter-notice, but the content still has to stay down for ten days.

The problem, PK says, is that right now there isn't much risk in sending a site a bogus takedown notice. "When it comes to takedown notices, it often seems like alleged infringers are assumed guilty until proven innocent," the Blueprint contends.

The proposed fix: Harmed defendants should be able to ask for damages from $200 to $2,500. A judge should be able to boost that upper limit forfeit by a factor of ten if she finds that the takedown demander was lying.

Cracking DRM

At present, if you deploy some kind of device to cut through the DRM on a DVD, you are a law breaker, even if you plan to utilize the copyrighted content legally. Public Knowledge has been calling on Congress to address this inconsistency for quite some time (as has Ars Technica's Tim Lee), allowing users to bypass digital locks if they're doing so for non-infringing purposes.

"That means that only lawful uses—such as uses with the copyright holder's permission, fair uses, or other uses under limitations and exceptions to copyright law—could legally circumvent DRM under these changes," PK's recommendation observes. The odds of this happening are slim to none; despite telling everyone who will listen that all of their works are being shared on the Internet, big rightsholders argue that making circumvention software legal in any scenario will lead to even more pirating of their works.

Stop copyright bullying

Some copyright lawsuits aren't about copyright infringement, PK warns. They're really about targeting speech that the plaintiff doesn't like. So the group wants lawmakers to create a special procedure, a "motion to strike," that would allow defendants to ask a judge to consider this possibility if the suit poses "a significant harmful effect on free expression."

The motion would suspend the expensive discovery phase of a trial until the judge makes her call on the motion. Public Knowledge's proposed legislation would also legalize "transient" copies.

"A simple fact of digital devices is that they necessarily make copies of the things that they process," the Blueprint points out. "This technicality creates liability where there should be none—for instance, it should be uncontroversial that a CD player with a buffer to prevent skipping shouldn't need a license in order to play a CD."

Make "fair use" fairer

You might believe that you have deployed copyrighted content for some fair use, but if a judge disagrees, you could find yourself on the hook for up to $150,000 in statutory damages per infringing use. Public Knowledge wants Congress to pass an amendment that would eliminate statutory fines if a defendant shows that he thought he had reasonable grounds for believing his use of a work was fair (the plaintiff could still sue for actual damages caused by the use).

"The fair use doctrine in copyright is designed to allow the public to make use of works without permission of the original author," the Blueprint notes. "The risk of a lawsuit, however, often hinders people from taking advantage of all that fair use has to offer."

Finally, Public Knowledge wants legislation requiring the US Trade Representative to publicly disclose any copyright or intellectual property-related proposals it makes to drafts of trade agreements. And any USTR advisory groups, which general include plenty of people from the "industry," should include "representatives of the public interest unaffiliated with industry."

Once you register at the Internet Blueprint site you can vote on these proposals, and submit your own.

"Our goal is for people and organizations to propose their own ideas that can also be turned into draft legislation on other topics that will evolve into a positive agenda for Internet change," says PK's Michael Weinberg.

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